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And If You Think A Needle In Your Arm Is Bad

In the New York Times, Lincoln Caplan raises the specter of an adverse ruling from the Supreme Court in Missouri v. McNeely.

In Missouri v. McNeely, scheduled for argument at the court on Wednesday, the police forced a driver to take a blood test at a hospital without a warrant, after he refused to take a breath test with a portable machine when he was stopped for erratic driving. The blood test showed that his blood alcohol content was 0.154 percent, or almost twice the state’s legal limit.

The Missouri Supreme Court wisely ruled that the warrantless blood test was an unreasonable search because there was no emergency that prevented the police from getting a search warrant in a timely manner before the alcohol in the driver’s blood dissipated.

Mind you, the justification for someone sticking a needle in an arm is only tenuously connected with saving a life, since it does nothing to stop a drunk driver, but merely advances the collection of evidence of guilt after a stop has been made. The sole benefit is conviction, which arguably will result in a sentence that will arguably have a deterrent effect. Whether that’s so is a matter of religion.

Yet, the State of Missouri believes this is important. So does the United States of America.

The United States government, siding with Missouri, argues that warrantless blood draws are needed “to prevent the imminent destruction of evidence.”

It’s not that there would be no evidence without blood draws. Indeed, there would be the same evidence that was used for decades before blood draws, the observations of cops and the testimony about the defendant’s conduct. In the worst of situations, there would still be evidence. It would just be less conclusive evidence, and open to meaningful cross-examination that could make the cop look unconvincing. So the crux of the argument is that without warrantless blood draws, the government couldn’t be assured of a conviction and would have to take its chances using other evidence.

Caplan doesn’t argue that blood draws are unduly intrusive, or painful, or contrary to the defendant’s right against self-incrimination. He argues that there is no need for warrantless blood draws, as there is no exigency:

The Fourth Amendment prohibits the police from searching individuals without a warrant, but the Supreme Court allows exceptions to that rule for “exigent circumstances” — when the police believe that the delay involved in getting a warrant would lead to destruction of evidence.

But in 21 states, including Missouri, the police have successfully obtained thousands of warrants to get blood alcohol evidence.

One of the grand benefits of technology is that warrants are now only a phone call away. The aspect of Caplan’s argument that is certainly accurate is that the cops can, and do, get warrants for blood draws on the fly all the time. The aspect that is problematic is that all this amounts to is adding a phone call to the mix, then drawing blood. Maybe in the hospital. Maybe on the hood of the cruiser. But either way, blood will be drawn. Sure, it’s better to honor the warrant clause than ignore it, but blood will be drawn.

Cook claims the incident in question started on a quiet side road in Ephraim where he was parked smoking cigarettes inside a car with friends. Cook says police officers approached the car, suspecting the young men were smoking marijuana.

“When they approached us, they said it smelled like marijuana, but we said no, we’re smoking cigarettes and we just put the cigarettes out like you asked us to,” says Cook.

Cook refused to offer a urine sample after the cops demanded it numerous times. He adds that he repeatedly asked for an attorney to be present.

While blood is drawn to test for alcohol, the test for marijuana requires a medium of a different color.

After obtaining what Cook’s attorneys call a “botched” search warrant, he was forced by police to be catheterized at Sanpete County Hospital. “The nurse told the officers to hold my shoulders while they cathetered me, and after that they took me straight to jail,” said Cook.

As bad as a needle in an arm is, the involuntary insertion of a catheter is a rape. While it may be testosterone talking, it’s hard to imagine any man not fighting such an intrusion as hard as possible. I know I would. Indeed, I would like to think that those who are vehemently against the rape of a woman would feel similarly about the insertion of a catheter, if they cared at all about men as they do about women.

This is the slippery slope Missouri v. McNeely leads us on, and if you find that unimaginable, consider that Stephan Cook sued for the sexual assault perpetrated on him by Sanpete County police, and United States District Court Judge David Nuffer dismissed the §1983 action, citing Cook’s plea in abeyance

According to Cook’s legal team, the federal judge dismissed his civil lawsuit partially due to the fact that Cook had previously admitted guilt. However, both Cook and his attorneys say the plea of abeyance was made under duress. The attorneys, who plan to appeal, say the ruling to dismiss the case on those grounds is just plain wrong. “Irrespective of whether he committed this crime, that’s irrelevant to whether they’re entitled to forcibly catheterize him,” said attorney Justin Heideman.

In other words, even if Cook was toking away, they don’t get to force a catheter into his penis. Naturally, the police disagree.

Peter Stirba, defense counsel for the Sanpete County officers issued this statement in response to the dismissal of the lawsuit: “The officers’ behavior was fully justified and certainly was not violative of any of Mr. Cook’s constitutional rights.”

After all, if they can’t collect urine, how can they conclusively prove Cook was smoking marijuana? And if inserting things into our bodies to collect the most conclusive evidence possible doesn’t offend the Constitution, then what reason is there to distinguish between one body part and another?

While this might add a cynical component to the problem, it is of course possible that a catheter is forcibly inserted into a recalcitrant suspect’s penis and the urine seized does not prove the use of marijuana. Let’s say a defendant is disrespectful to a police officer, and the officer says to himself, this fellow would never behave so contemptuously of my authority unless he was high, thus explaining the need to ascertain, with as much certainty as possible, whether there are drugs coursing through his veins. And so a forcible catheter is the tube of choice. And afterward, no drugs are found, and the police officer, whether with or without an apology, let’s the suspect go on his way, free of any judicial review.

And this is the potential future if the Supreme Court backs up the government, much like it’s our past and present.

I followed a linkchain to this post recently, and was, well, horrified by it, so I went and looked up Judge Nuffer’s opinion, wondering how anyone could possibly reason that it was okay to forcibly catheterize someone, and it looks like that wasn’t what the opinion really said. The state court that decided the issue initially said: “Not concerned about the catheterization because today, I’ve heard uncontroverted testimony that the defendant asked to be catheterized. I’m concerned about catheters, I’ll tell law enforcement right now, I think based on the Tenth Circuit case that comes – grew out of a case in this District, there’s reason to be concerned about catheters, but the testimony in this case is that the defendant requested it, so that doesn’t cause me concern about the validity of the search warrant.”

Whether or not that was the factual situation (and, to be frank, who would ask to be catheterized?), this isn’t a case that says “forced catheterization is fine.” From the opinion, it looks like what the lawyer was arguing was “you shouldn’t even have made this stop, and therefore all of the other stuff you did, including catheterizing mr. cook, was uncool.”

If you read the opinion, the judge also didn’t dismiss it because Mr. Cook had made a plea bargain. The judge explicitly said that judicial estoppel wasn’t a reason to dismiss the claim. It was barred by issue preclusion.

There are a lot, a lot, a lot, of things that could be Very Wrong here, but they’re that somehow there was uncontroverted evidence that Mr. Cook requested to be catheterized, not that a federal judge sanctioned forced catheterization or said that you can’t file a civil rights action if you plead guilty.

On closer reading (I skimmed a bit, it’s been a long day), it looks like there is something about the plea bargain in issue preclusion argument – your motion to suppress was denied, so you pled guilty and the case went away, so you didn’t appeal the admission of the evidence, so denial of your motion is final, so we can’t figure out whether the search was okay here. Which is a problem, but not the problem that seems implied above – that Judge Nuffer said “if you’re guilty of the crime, the search can’t have violated your civil rights.” He didn’t say that. Instead, it’s “if we have been so gracious as to punish you less barbarously, we’re not going to bother figuring out whether we violated your civil rights.”

Scott H. Greenfield

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